P L D 2012 Balochistan 146
Before Mrs. Syeda Tahira Safdar, J
Haji NIZAM UDDIN and 7 others ---Petitioners
versus
Haji PAYO DIN and another ---Respondents
Civil Revision No.70 of 2011, decided on 2nd January, 2012.
(a) Specific Relief Act (I of 1877) ---
----S.42---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Preamble & S. 2(c)-
--Suit for declaration of title of ownership ----Res judicata, principle of ---Applicability ---Suit
of plaintiff was rejected by courts below, inter alia, on the grounds that issue of title of
ownership of suit shop had already been decided by the Rent Controller on an ejectment
application filed by the defendants and that the plaintiff failed to bring on record any
document of ownership ---Validity ---Perusal of impugned orders revealed that the courts
below recorded findings without the framing of issues , and decided the matter while relying
on the documents, which were yet to be established by the parties after the production of their
respective evidence ---Issue was whether the property in question was a joint -property, and
owned by the parties ---Such fa ctual controversy could only be resolved on the basis of oral
and documentary evidence produced by the parties ---Proceedings before the Rent Controller
had no restraining effect on the proceedings pending before a court of general jurisdiction for
the dete rmination of title of ownership ---Proceedings under the West Pakistan Rent
Restriction Ordinance, 1959 were restricted between the persons litigating under the titles of
landlord and tenant in respect of rented premises ---Term "landlord" in the said Ordina nce
was used in a wider sense and may include the owner of the premises, and was also extended
to ,and included, any person who was entitled to receive the rent ---Landlord may not be the
owner of the property but he only derived the title of landlord being authorized to act on
behalf of the owner ---Rent Controller had restricted jurisdiction and could declare the title of
the parties, only to the extent of the existence of title of landlord and tenant and no
declaration as to the extent of the existence of the title of ownership of property could be
made in rent proceedings ---Such declaration could only be made by a court of general
jurisdiction in a suit filed under provisions of the Specific Relief Act, 1877 as was done by
the plaintiff ---Courts below had made an error while holding that the ownership of the
defendant had been decided by the Rent Controller in an ejectment application filed by the
defendant and on holding that the case was hit by the principle of res judicata ---Orders of the
courts below were set aside and the case was remanded to Trial Court with the direction to
frame issues and record evidence ---Revision was accepted, accordingly.
Raja Sher Ahmed v. Muhammad Abdullah and others 1991 SCMR 277/273; Gul Sharbat
Khan v. Zareef Khan 2009 MLD 1246 and Messrs Young Men's Christian Association
(YMCA) through President v. Government of Sindh through Secretary Social Welfare and
Women Development Department Karachi and 3 others 2009 CLC 986 ref.
(b) West Pakistan Urban Rent Res triction Ordinance (VI of 1959) ---
----S. 2(c) ---"Landlord", definition of ---Interpretation ---Term "landlord" was used in a wider
sense and may include the owner of the premises, and was also extended to, and included,
any person who was entitled to rece ive the rent ---Landlord may not be the owner of the
property but he only derived the title of landlord being authorized to act on behalf of the
owner.
(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----Preamble & S.2(c) ---Specific Relief Act (I of 1877) S. 42 ---Rent Controller, jurisdiction
of---Scope ---Rent Controller had restricted jurisdiction and could declare the title of the
parties, only to the extent of the existence of title of landlord and tenant ---No declaration as
to th e extent of existence of the title of ownership of property could be made in rent
proceedings ---Such declaration could only be made by a court of general jurisdiction in a suit
filed under provisions of the Specific Relief Act, 1877.
Shamsuddin for Petit ioners.
Liaquat Ali Tareen for Respondent No.1.
Amanullah Tareen, Addl. A.G. along with Fazal Muhammad representative for Respondent
No.2.
Date of hearing: 15th June, 2011.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---Feeling aggrieved of the order d ated 31st
December, 2010 of Civil Judge, Zhob, whereby the suit filed by the petitioners was rejected,
and order dated 28th February, 2011 of District Judge Zhob, whereby the appeal filed against
the order was also refused, the petitioner filed the instant petition seeking setting aside of
both the orders, and remanding the case to the trial court to decided it afresh in accordance
with the law. It was contention of the petitioners that both the courts below failed to
understand, and appreciate the points i nvolved in the case, and decided the matter in haste.
Further, the matter in dispute pertains to factual controversy existed between the parties, but
the trial court decided the suit without calling for the evidence. But, this aspect of the matter
was not considered by the appellate court, therefore, needs interference of this court. It is
further contended that the courts below while deciding the matter relied on findings of the
Rent Controller in respect of title of ownership in eviction proceedings. But failed to
appreciate the legal aspect of the matter that the issue of ownership cannot be decided in a
rent proceedings. Furthermore, the principle of Re judicata was misapplied in the case. It was
contended that both the courts below failed to consider th e legal and factual aspect of the
case, and arrived to the findings, which are contrary to law, thus not sustainable.
2. While arguing the matter the learned counsel for the petitioners was of the view that the
property in question is a joint property, w hile it is in joint possession of the parties. Further,
previously the eviction of shop in question was sought, which was allowed by order of the
Rent Controller, but this fact does not act as Res judicata, in the proceedings of the instant
case before the trial court. It was further his arguments that in view of the relevant law, the
Rent Controller is not competent to decide the title of ownership between the parties. He
further contended that the petitioners were condemned unheard, as the proceedings wer e not
conducted in accordance with law. While replying to the arguments of the learned counsel for
the petitioner, the learned counsel for the respondent No. 1 was of the view that the Rent
Controller is very much competent to decide the title and ownershi p of the parties before it. It
was further his argument that the instant suit was filed without any cause of action.
Therefore, rightly rejected by the courts below. Learned counsel relied on:
Raja Sher Ahmed v. Muhammad Abdullah and others 1991 SCMR 277 /273
Gul Sharbat Khan v. Zareef Khan 2009 MLD 1246
Messrs Young Men's Christian Association (YMCA) through President v. Government of
Sindh through Secretary Social Welfare and Women Development Department Karachi and
3 others 2009 CLC 986
3. The p etitioners filed a suit seeking declaration of the title of ownership in respect of the
shop bearing No. D/223 -A, situated in front of Post Office, Zhob, being their joint property.
They sought possession of their respective shares from the shop after its partition. But, in
reply respondent No.1 strongly denied the title of the petitioners with contention that the shop
is exclusively belonged to him, as it was allotted in his name by the Tehsil Municipal
Administrator, Zhob, through PATTA dated 11th June, 1 980. With further contention that he
previously filed an application seeking ejectment of the tenant from the premises, which was
allowed in his favour up to the level of this Court. At present the title of the shop is matter in
issue between the parties. The trial court decided the matter through order dated 3rd
December, 2010, and made order to the effect: --
"That plaintiff side has no ownership documents, while defendant No.1 attached patta of shop
in question issued in favour of him, the authenticity of said patta/ownership through
cancellation is not requested by plaintiffs, without of that he requests of declaration and
partition is not possible, therefore in present form of plaint the plaintiff have no cause of
action, hence instant plaint is hereby rejected and status -quo order dated 19 -10-2010 is also
called back.
Being aggrieved of the order, an appeal was preferred, which was decided through order 28th
February, 2011, by District Judge Zhob, whereby the order of the trial court was upheld. The
appellate court completely based its findings on fact that "on issue regarding ownership of the
shop in question has already been decided by the court of Rent Controller vide judgment
dated 17th April, 2009 and on asking a question to the fact that when th e issue has been
decided by the court of competent jurisdiction, can be reopened but there was no reply from
the learned counsel for the appellants."
4. The bare perusal of both these orders reveals that both the courts below without framing of
the issue s recorded findings, and decided the matter, while relying on the documents, which
are yet to be established by the parties after producing their respective evidence. It is a clear
error on the part of the courts below. In present case the issue in hand is that whether the
property in question is a joint property, and owned by the parties. It is a factual controversy,
which can only be decided on the basis of oral and documentary evidence produced by the
parties. As far as the proceedings before the Rent Co ntroller is concerned, it has no
restraining effect on proceedings pending before a court of general jurisdiction for
determination of title of ownership. Because the proceedings pending before the Rent
Controller working under provisions of Balochistan Ur ban Rent Restriction Ordinance VI,
1959 has restricted jurisdiction as provided therein. The preamble of the Ordinance provides
the matters, which are to be dealt under the Ordinance. The preamble reads as under: --
"WHEREAS, it is expedient in the public interest to restrict the increase of rent of certain
premises within the limits of urban areas and the eviction of tenants there from in Province of
(West Pakistan);"
Therefore, in view of the same the proceedings initiated under the Ordinance is restri cted
between the persons litigating under the title of landlord and the tenant, in respect of rented
premises. The term Land Lord is defined in section 2(c) of the Ordinance, which reads as
under: --
"Landlord ; means any person for the time being entitled to receive rent in respect of any
building or rented land whether that on his own account or on behalf of for the benefit of any
other person, or as a trustee, guardian, receiver, executor or administer for any other person,
and includes a tenant, who sub lets any building or rented land in the manner hereinafter
authorized and every person from time to time deriving title under landlord.
In view of the same the term landlord is used in a wider sense. It may include the owner of
the premises, but it also extends, and includes any person, who is entitled to receive the rent.
Therefore, the landlord may not be the owner of the property and he only derives title of
landlord being authorized by the owner to act on his behalf. Therefore, keeping in view the
relevant law, the Rent Controller has restricted jurisdiction, and can declare the title of the
parties, only to the extent of existence of title of landlord and tenant. But, no declaration to
the extent of the title of ownership of property can be made in re nt proceedings. Rather,
declaration to the effect can only be made by a court of general jurisdiction in a suit filed
under provisions of the Specific Relief Act, as done in present case. Both the courts below
have made error while holding that the ownersh ip of respondent No.1 has been decided by
the Rent Controller in eviction application filed by him. Therefore, no further relief can be
granted, and case is hit by principle of Res judicata.
5. In view of the above discussion both the courts below not only erred in law but also erred
in facts and the orders made are contrary to law, thus not sustainable. In view of the above
discussion the orders dated 3rd December, 2010 passed by Civil Judge Zhob, and order dated
28th February, 2011 passed by District Judge Zhob, are hereby set aside. The case is
remanded to the trial court for proceedings with the matter, after framing of issues and
calling of evidence in accordance with law.
No orders as to costs.
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